August 28, 2004

The article, “Citing low pay, lawyers refuse indigent cases” [NLJ, Aug. 23, Page 4], on the Massachusetts bar advocates, left out a very important point: As independent sellers of legal services in private law practices, assigned counsel are not permitted under federal antitrust laws to act together to force a buyer of their services (e.g., the state and its taxpayers) to increase fees.

In 1990, the U.S. Supreme Court heard all the same arguments made now by the bar advocates, in a case involving indigent defense counsel in Washington. The court rejected each of the reasons for the so-called “strike,” and declared that a group boycott aimed at increasing fees is a clear violation of the antitrust laws. FTC v. Superior Court Trial Lawyers Assn. (1990). [See http://blogs.law.harvard.edu/ethicalesq/stories/storyReader$1954].

Whatever a “fair fee” might be, it should not be the result of unlawful, unethical, coordinated pressure on the courts and the legislature by “officers of the court.” Yes, politicians should set a fee level that takes into account the long-term effects on the supply and quality of legal services. But they should not have to act under the gun of coercive, collective refusals to deal, which have created an avoidable crisis.